Substantiation/Registry
SUBSTANTIATION
After a DCF investigation, you might be "substantiated".
Substantiations run the gamut from
educational neglect up to physical abuse and sexual abuse. The
most common change is physical neglect.
If you are substantiated for abuse or neglect, you may challenge
the substantiation. Under current law, you have thirty (30) days in which to request a
review. DCF will then review the matter internally. You or your
lawyer may submit documentation to assist in your cause.
After the internal review is conducted, DCF will either uphold
any or all substantiations, or it will
reverse the findings. If a substantiation is upheld, you have
thirty (30) days to request an Administrative Hearing to contest DCF’s findings in front of a DCF Hearing Officer.
You may have a lawyer representing you at the
Administrative Hearing. The hearing is conducted by a DCF employee.
However,
that person is a lawyer, called a “Hearing Officer” or
“Adjudicator”, and is normally a fair-minded person with a good
degree of independence from the DCF investigators. In other
words, you have a chance to win here, if you are prepared.
Hearings are private, less formal than standard courts, and strict
rules of evidence are relaxed. DCF, in fact, is sometimes
represented by a paralegal, and not by a lawyer. Your lawyer
will get the DCF “investigation protocol” (DCF’s case record)
ahead of time, and will be able to review it, line-by-line,
along with other documents, and look for inconsistencies. An
experienced lawyer will be able to effectively cross-examine
witnesses, and help you call your own factual and expert
witnesses and submit your own documents. The lawyer will also prepare a closing argument, and
help the Hearing Officer understand your version of the facts,
as well as the law. DCF often tries to hurry up these hearings.
Your lawyer will be able to arrange adequate preparation time,
and get additional hearings as may be necessary. Also, since
hearsay evidence is allowed, the lawyer will be able to minimize
the effect of this evidence against you. Your lawyer may even be
able to negotiate a deal with DCF, so that a hearing can be
avoided altogether.
If you lose at the Administrative Hearing, you have the right to
appeal to the Connecticut Superior Court, and be heard by a
Judge. However, in that hearing, the Judge is required to give
deference to DCF’s decision. In other words, you must prove that
DCF was wrong; DCF does not have to prove its case all over
again. Your lawyer will be able to advise you,
if you lose at the hearing, whether or not you have adequate
grounds for an appeal.
In short, if you are being investigated by DCF, a lawyer might
help you avoid a substantiation. If you are substantiated, a
lawyer might help you to get it overturned. Whatever you choose,
it is best to get legal advice from a lawyer, not from DCF
itself or from other well-wishers.
What happens if you miss a deadline for appealing a
substantiation?
Many lay persons pay little attention to legal niceties, and
many people have been denied hearings because they missed a
deadline. As a result, a law effective October 1, 2005 requires
that when DCF substantiates you, it must, among other things:
1. Inform you of the consequences of placement on the Registry.
2. Inform you of your right to appeal.
3. Provide a written form for the person to appeal.
Of course, some people do not get the word, as old forms
sometimes continue to be used, and “communication problems” can
occur. If you miss the deadline to appeal for this or any other
reason, you can file an appeal to the Superior Court, asking for
the right to appeal to DCF. It takes a lot of paperwork,
research, and pleading, but in some instances you can be
successful in winning your right to appeal a DCF substantiation
despite missing the deadline. However, the process is expensive
and time-consuming, so it is better, by far, to see a lawyer
right away. If you do miss a deadline, do not automatically give
up. There may be a chance.
Note: If you mail in an appeal yourself, be certain to keep a copy of the appeal form that you send to DCF. To truly protect yourself, send the form by certified mail with return receipt requested.
EXTREMELY IMPORTANT: If you have been arrested for the offense that gave rise to the substantiation, and if you have a separate criminal lawyer, be CERTAIN the criminal lawyer keep in communication with your DCF lawyer. Criminal lawyers may agree to plea deals that make perfect sense in criminal court, but have adverse consequences in DCF administrative hearings. Most criminal lawyers have never dealt with these consequences, and may be unaware of them. Under NO circumstances should you plead in criminal court with a pending substantiation, unless the criminal lawyer and the DCF defense lawyer have thoroughly discussed the ramifications.
REGISTRY
If you are substantiated, then DCF may recommend you for
placement on the Central Registry. If it does, then the
substantiation and Registry appeals will be heard together.
BUT, be careful. There are outdated DCF appeal forms which state that you have been recommended for the Registry even if you have not. Those outdated forms have been replaced, but some offices continue to use them, causing needless aggravation for parents. As recently as April, 2010, we had to ask the Commissioner to remind local offices to discard obsolete forms. Please see a lawyer to be fully certain of your rights.
The Central Registry is a database of substantiated
perpetrators of child abuse and/or neglect who are considered a
danger to children. The Registry is not
a public database, but it can be accessed for the
purposes of obtaining information for the investigation of child
abuse and neglect, background checks, and some other uses as
permitted by law. If you are placed on the Registry, you may remain
there for the rest of your life. This will adversely
affect your chance of obtaining employment in child-related
fields, such as teaching, daycare, adopting or becoming a foster parent, etc.
Before October 1, 2005, anyone substantiated for abuse or
neglect was automatically placed on the Child Abuse/Neglect
Registry. Whether you committed one non-serious incident of
neglect, admitted the fact, and moved forward from there with an
exemplary life; or whether you committed serious and repeated
acts of abuse and were an obvious threat to children; you were
all on the same Registry.
Fortunately, that changed. It is now possible to be
substantiated but not placed on the Registry. Your lawyer may be
able to negotiate a deal, sometimes in which you accept a
substantiation in returning for no Registry placement. It
is an option to consider.
Strangely enough, before May, 2000, you could be substantiated, automatically placed on the Registry, and not even be told about it. It is hard to believe that this could happen in America, let alone the liberal Northeast; but it did. As a result, persons often find that they are denied employment or licenses for incidents that happened 10 or 20 years ago that they had gotten no record of and had forgotten.
In these instances, you may be allowed a late appeal of the Registry finding. It is best to check with a lawyer to determine your legal rights.
REGISTRY REMOVAL
Suppose that you were validly placed on the Registry. As of this
writing, there is no mechanism for ever being removed from the
Registry. That is strange. Even convicted felons can receive
pardons; but there is at present no way to get off a valid
Registry placement, even if you have totally reformed and are
clearly not a danger to children. It is a lifetime blemish.
This office broached the idea of a registry removal procedure to
DCF about three years ago. DCF agreed that it was a good idea, but
did nothing. Finally, we drafted a bill; and as of this writing,
DCF has agreed with it. Therefore, shortly, it may be possible
for a person who was validly placed on the Registry to be
removed from the Registry, after five years of good behavior.
Unfortunately, the Registry removal bill failed to pass in the
Connecticut 2012 legislative session. We are very hopeful that
it will pass in 2013. DCF remains in agreement with this, and
our lobbyist is working with the appropriate legislators. We
will be ready to help clients get removed from the Registry if
the bill passes.
PETITION
The substantiation/registry hearings are considered
administrative. That is, they are conducted by DCF at DCF
offices. Regardless of the result, DCF may also file an
Abuse/Neglect
petition against you, and you may find yourself defending the
same allegations both at a DCF administrative hearing and in the
Connecticut Juvenile Court. This seems unfair, but at
present it is allowed.
I recently had a case in which a person was substantiated and appealed it. While the appeal was pending, DCF wanted the person to agree to certain family services. He said no, as he didn't feel they were needed; and in any case, the matter was currently being appealed. If he lost the appeal, he would of course do the services. DCF retaliated by filing a Juvenile Court petition against him. The Court allowed DCF to file the petition; it had no choice under present law. The effect, of course, was to bankrupt the man into submission. Thankfully the Juvenile Court case was eventually completed early; everyone knew the parents had done nothing wrong.
For an example of a registry case that our office handled, see Jake and Frieda
For an example of good scrutiny of DCF, involving child discipline, see Lovan C.